To show that a person acted recklessly, the prosecution must establish that the person's conduct created a "substantial and unjustifiable" risk. Whether a risk is substantial must be determined by assessing both the likelihood that harm will occur and the magnitude of the harm should it occur. Whether a risk is unjustifiable must be determined by assessing the nature and purpose of the actor's conduct relative to how substantial the risk is. In order for conduct to be reckless, the risk must be of such a nature that its disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise.
Respondent, an experienced skier, who was skiing too fast, collided with the victim where his ski fractured the thickest part of the victim's skull, and who sustained traumatic brain injuries and died. At a preliminary hearing, the county court found respondent's conduct did not involve a substantial and unjustifiable risk of death to sustain a manslaughter charge. The district court affirmed the no probable cause finding.
Can a person be liable for manslaughter if that person’s conduct caused the death of another person?
The Court held that while skiing ordinarily carried a very low risk of death to other skiers, a reasonable person could have concluded that respondent's conduct grossly deviated from the standard of care that a reasonable, experienced ski racer would have exercised knowing that other people were skiing in front of him. Respondent's excessive speed and lack of control significantly increased the likelihood that a collision would occur and the extent of injuries that might result from such a collision, including the possibility of death.